Mr Radhakrishnan Perumal v Specsavers Epping Pty Ltd T/A Specsavers Optometrists

[2013] FWC 1695

[2013] FWC 1695

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal

Mr Radhakrishnan Perumal
v
Specsavers Epping Pty Ltd T/A Specsavers Optometrists
(C2013/3170)

COMMISSIONER ROE MELBOURNE, 19 MARCH 2013

Decision - general protections dispute - jurisdiction: extension of time.

[1] On 15 February 2013 the Applicant, Mr Radhakrishnan Perumal, made an application under S.365 of the Fair Work Act 2009 (the Act) alleging contravention involving dismissal by the Respondent, Specsavers Epping Pty Ltd T/A Specsavers Optometrists. It is not in dispute that the dismissal of the Applicant took effect on 16 January 2013 and that the application was therefore made 30 days after the dismissal took effect. The Act requires that the application be made within 21 days after the dismissal took effect (in respect to a dismissal which took effect after 1 January 2013). This decision deals with the jurisdictional objection raised by the Respondent concerning extension of time.

[2] The Act provides:

“366 Time for application

(1) An application under section 365 must be made:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as FWA allows under subsection (2).

(2) FWA may allow a further period if FWA is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

(b) any action taken by the person to dispute the dismissal; and

(c) prejudice to the employer (including prejudice caused by the delay); and

(d) the merits of the application; and

(e) fairness as between the person and other persons in a like position.”

[3] I adopt the approach to the question of exceptional circumstances for the extension of time taken by Vice President Lawler:

“In summary, the expression “exceptional circumstances” requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional. It is not correct to construe “exceptional circumstances” as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural “circumstances” as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of “exceptional circumstances” includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon.” 1

[4] The Applicant provided two reasons for the delay. Firstly, the Applicant argues that because the Respondent did not provide pay slips until 13 February 2013 he was unable to calculate whether or not he was facing an underpayment problem until after that time. Secondly, the Applicant argues that the bullying and harassment he was subjected to prior to the termination and the stress caused by the termination including unfair criticism made of him at the termination meant that he could not do anything for many days and he was advised by his general practitioner to “have rest from his working environment, relaxation and counselling”.

[5] I am not satisfied that the Applicant was medically unable to make the Application. The Applicant emailed the Respondent twice on 16 January, once on 17 January, twice on 23 January, once on 4 February, once on 10 February, once on 13 February and once on 13 February 2013. The Applicant attended the premises of the Respondent on 20 January 2013 to return his uniform. The Applicant says that he attended the doctor on 13 February 2013 and not before and the letter provided by the doctor of the same date does not say that the Applicant was unable to make the general protections application to FWC. The Applicant did attend the FWC office on 15 April 2013 to make the application. The symptoms described in the letter of 13 February 2013 suggest illness but not incapacity to make an application.

[6] I am not satisfied that lack of awareness of the extent of any underpayment is a reason for delay in making a general protections application in the circumstances of this case.

[7] The correspondence to the employer is generally not challenging the dismissal but its dealing with matters such as pay slips and references. However, the correspondence of 16 January and 23 January does dispute the reasons given for dismissal and the circumstances of the dismissal to some extent. The Applicant does not suggest that any other action to challenge the dismissal was taken prior to making the application.

[8] The Applicant does not explain the contraventions of the Act very clearly. It is apparent that the Applicant did complain before the termination about bullying and inappropriate behaviour by other employees and also about underpayment. However, there is little evidence to link these matters to the termination and the employer strongly argues that there were performance reasons for the termination after 4 and a half months. This was during the probation period notified to the Applicant.

[9] Given the evidence concerning the bullying and underpayment complaints I cannot say that the Application is without merit but on the material before me I do not believe that the case is particularly strong. I have not heard all the evidence and hence do not reach any concluded view on the merits. It is a neutral factor concerning the extension of time application in this case.

[10] There is no particular prejudice to the employer beyond the normal. However, I do note that the franchise is a small business facing a poorly defined application.

[11] There is no suggestion that there are any other persons in a like position in this case.

[12] In the circumstances of this case the major factor is the reasons for the delay. The reasons for delay do not favour a finding of exceptional circumstance.

[13] Taking all of the factors into consideration I am satisfied that there are no exceptional circumstances warranting an extension of time.

[14] I decline to grant an extension of time. The Application is therefore dismissed and an order to that effect will be published.

COMMISSIONER

Appearances:

Applicant represented himself.

Mr Hooper represented the Respondent.

Hearing details:

2013

Melbourne

March 18

 1   Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Postal Corporation [2007] AIRC 848 at para 10.

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